Singh (Migration)

[2019] AATA 4718

Singh (Migration) [2019] AATA 4718 (11 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Harinder Singh
Mrs Sharanjeet Kaur

CASE NUMBER:  1902089

HOME AFFAIRS REFERENCE(S):           BCC2018/169956

MEMBER:Warren Stooke AM

DATE:11 July 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 11 July 2019 at 4:10pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme Scheme) – Direct Entry stream – employer’s nomination application withdrawn – no application for review of refusal – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 187.233(1), 187.311

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 11 January 2018. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the 'Common criteria', as well as the criteria of one of two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of Motor Mechanic (General) – ANZSCO 321211.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.223 of Schedule 2 to the Regulations given that the applicant did not have an approved standard business sponsor.

6. The applicants appeared before the Tribunal on 25 June 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

7. At the commencement of the hearing, the Tribunal confirmed that the applicant had read the delegate’s decision of 11 January 2019 and that he understood the content of the decision. The applicant stated that he received an email that his employer had withdrawn the application and that he did not know the reason.

8. The applicant confirmed that he had provided a copy of the delegate’s decision to the Tribunal with his application.

9. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant has an approved standard business sponsor.

    Nomination of a position

11. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream, located in regional Australia. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

12. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made nomination

    ·the nomination has been approved and has not been subsequently withdrawn

    ·there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of r.1.13A and r.1.13B); or it is reasonable to disregard any such information

    ·the position is still available to the applicant, and

    ·the visa application was made no more than six months after the nomination of the position was approved.

13. The applicant provided evidence that he arrived in Australia in 2009 and that he had undertaken studies as a mechanic, which was followed by courses in Business Management and a Diploma in Marketing.

14. The applicant stated that his family in Australia consisted of a wife.

15. The applicant gave evidence that he became aware that he did not have a sponsor after he received an email from the Department.

16. The Tribunal observed to the applicant in the hearing, from the delegate’s decision, that on 13 December 2018 the nomination lodged by S and R Mutual Services Pty Ltd, being the nomination referred to in paragraph 187.233(1), was withdrawn by the nominator.  

17. The Tribunal asked the applicant if he had an approved standard business sponsor and the applicant responded: “No.”

18. The Tribunal asked the applicant if he understood he needs an approved standard business sponsor and the applicant responded: “Yes”.

19. The applicant advised the Tribunal that he was currently working in a Woolworths warehouse as a storeperson.

20. The applicant was invited to make comment and he responded with the statement: “If I get another sponsor then..”

21. On the basis of the evidence provided by the applicant, that confirmed that the applicant does not currently have an approved standard business sponsor, the Tribunal is satisfied that the applicant does not meet the criteria provided in cl.187.233.

22. Therefore, cl.187.233 is not met.

23. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed.

24. As the primary applicant does not meet the requirements of cl.187.223, it follows that the secondary applicant is not a member of a family unit that has met the requisite criteria. Accordingly, the secondary applicant does not satisfy cl.187.311 of Schedule 2 of the Regulations.

    DECISION

25. The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

    Warren Stooke AM
    Member

    
    

    ATTACHMENT A

    187.233(1)      The position to which the application relates is the position:

    (a)nominated in an application for approval that seeks to meet the requirements of:

    (i)subparagraph 5.19(4)(h)(ii); or

    (ii)subregulation 5.19(4) as in force before 1 July 2012; and

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); and

    (b)in relation to which the declaration mentioned in paragraph 1114C (3)(d) of Schedule 1 was made in the application for the grant of the visa.

    (2)      The person who will employ the applicant is the person who made the nomination.

    (3)      The Minister has approved the nomination.

    (4)      The nomination has not subsequently been withdrawn.

    (4A)    Either:

    (a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

    (5)      The position is still available to the applicant.

    (6)      The application for the visa is made no more than 6 months after the Minister approved the nomination.